In re R.C., a Person Coming Under the Juvenile Court Law, The People, v. R.C.

An attempt to commit armed robbery is extremely

dangerous. Appellant is lucky he was not shot to death by the

store clerk who resisted his attempt to commit this offense. He

would not have been the first attempted robbery culprit to meet

this fate. He appeals from the judgment entered after the

juvenile court sustained a juvenile delinquency petition (Welf. &

Inst. Code, § 602) for assault with force likely to produce great

bodily injury (Pen. Code, § 245, subd. (a)(4)) and attempted

second degree robbery (Pen. Code, §§ 664/221). The juvenile

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court placed appellant on probation with electronic monitoring

and ordered restitution. We affirm.

Facts and Procedural History

At 4:00 a.m. in the morning of August 14, 2018, 14-year-old

appellant and 15-year-old E.B. entered a 7-11 store to commit an

armed robbery. A lookout was posted outside the store.

Appellant wore a black hoodie and ski mask, and brandished a

black metal BB pistol. E.B. wielded a silver metal BB pistol.

Appellant “slammed” a bag on the counter and ordered the clerk

to put the money in the bag. The clerk resisted, wrestling the BB

gun from appellant. E.B. intervened and pistol-whipped the clerk

allowing them to flee. The crimes were filmed on the store

surveillance video.

At the adjudication hearing, appellant admitted that he

brandished the BB gun to scare the clerk “into putting the money

into the bag.” He claimed E.B.’s assault on the clerk was

unintended. His attorney argued that “the aiding and abetting

standard should . . . be revised for juveniles to . . . recognize[] the

developmental differences between the adult brain and the

adolescent brain.” This theory was/is based upon a law review

article, “Kids Will be Kids: Time for a ‘Reasonable Child’

Standard for the Proof of Objective Mens Rea Elements.”

(Northop & Rozen, 69 Me. L.Rev. 109 (2017).) The fair import of

this law review article is as follows: “Based on the goals of the

juvenile system, significant advances in adolescent development

research and recent Supreme Court holdings on juvenile

culpability, we argue here that the juvenile code should be

amended to explicitly refer to a reasonable child standard for any

mens rea element that relies on a reasonable person as the

measure for criminal culpability.” (Id. at p. 112, italics omitted.)

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In sustaining the petition, the trial court stated “I don’t

think the brain science argument really pertains to the issues of

legal liability so much as it does to [the] appropriate disposition

in the case. [¶] It’s clear that the three persons involved in this

event all were fairly well involved in what was going to happen.

They all had their roles to play: the lookout, the two people that

went into the store with masks and simulated firearms. . . . [I]t

was a fairly well planned out event. And the fact that it went in

a direction that maybe they didn’t anticipate when the clerk

decided to resist . . . does not in the Court’s view amount to any

kind of due process violation to apply the normal princip[les] of

accomplice liability under these circumstances.”

Natural and Probable Consequences Doctrine

Under the natural and probable consequences doctrine, an

aider and abettor is guilty not only of the intended target (here

robbery) offense, but also of any other offense that was a “‘natural

and probable consequence’” of the crime aided and abetted.

(People v. Prettyman (1996) 14 Cal.4th 248, 260 (Prettyman); see

In re Eduardo M. (2006) 140 Cal.App.4th 1351, 1358-1359

[applying general principles of aider and abettor liability to

juveniles].) “The inquiry does not depend on whether the aider

and abettor actually foresaw the nontarget offense,” but rather on

whether that outcome was objectively likely or foreseeable.

(People v. Chiu (2014) 59 Cal.4th 155, 161-162 (Chiu).)

The doctrine is based upon an objective standard. (People

v. Nguyen (1993) 21 Cal.App.4th 518, 531 (Nguyen).) “‘Because

the nontarget offense is unintended, the mens rea of the aider

and abettor with respect to that offense is irrelevant and

culpability is imposed simply because a reasonable person could

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have foreseen the commission of the nontarget crime.’

[Citation.]” (Chiu, supra, 59 Cal.4th at p. 164.)

Appellant and E.B. armed and disguised themselves, and

entered the store to commit a robbery. When the store clerk tried

to disarm appellant, E.B. pistol-whipped the clerk and fled with

appellant. It was foreseeable that E.B. would use the pistol as a

weapon. Why else would he bring it to the scene of the crime?

Substantial evidence supports the finding that E.B.’s assault was

a natural and probable consequence of the armed robbery.

(Prettyman, supra, 14 Cal.4th at pp. 262-263.) Appellant’s

liability as an aider and abettor of the assault was based on his

joint participation in an extremely dangerous situation that he

helped create. (See, e.g., In re Gary F. (2014) 226 Cal.App.4th

1076, 1080 [aider and abettor liability based on presence at the

scene of the crime, companionship with principal actor, conduct

before and after the offense, and flight]; In re Lynette G. (1976) 54

Cal.App.3d 1087, 1094-1095 [same].)

In People v. Fagalilo (1981) 123 Cal.App.3d 524, defendant

and three codefendants entered a Thrifty Drug Store to commit a

robbery. Defendant reached for the money in the cash register

but the cashier pushed him away. When the assistant manager

tried to assist the cashier, one of the codefendants threw a bottle

of wine at the assistant manager. He “ducked” but two customers

were hit by the bottle and broken glass. (Id. at p. 528.) The

Court of Appeal held that “[t]he evidence was . . . sufficient to

establish [defendant’s] liability as an aider and abetter of [codefendant’s]

assault. The defendants entered the store together

and escaped together. The jury could reasonably infer that they

were jointly engaged in a robbery, the natural and probable

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consequences of which included resistance by any of the

defendants to avoid capture. [Citations.]” (Id. at p. 532.)

The Non-Developed Brain Theory

Appellant argues that the concept of holding a juvenile

responsible for the natural and probable consequences of a

robbery, i.e., the assault directly committed by E.B., violates due

process principles because a 14-year-old lacks the capacity to

anticipate the consequences of criminal conduct.1

This argument

confuses criminal capacity with aider and abettor liability which

focuses on whether a criminal act was a natural and probable

consequence of another criminal act. (Nguyen, supra, 21

Cal.App.4th at p. 531 [defendant’s subjective state of mind not

considered.] At oral argument appellant drew an analogy to the

situation where a defendant is both visually impaired and

hearing impaired. Such a defendant’s criminal liability should be

measured with these disabilities in mind. (See People v. Mathew

(1994) 25 Cal.App.4th 89, 98-100.) Theorectical immaturity and

“non-developed brain” does not equate with physical diability.

Physical disabilities are objectively verifiable. Immaturity and a

“non-developed brain” are not objectively verifiable. The analogy

is not apt.

Based on appellant’s construction of the law, the trial court

must consider “non-developed brain” and impulsivity in

determining aider and abettor liability. This would require

significant re-writing of juvenile law. This is not our legitimate

function. This novel theory is best addressed to the Legislature.

We express no opinion on its wisdom. We agree with the juvenile

1

Appellant does not challenge the second degree robbery

adjudication. At oral argument he conceded. That the “nondeveloped

brain theory” would not apply to the robbery.

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court that this subjective component goes to the issue of

disposition, not adjudication. (See, e.g., People v. Gutierrez (2014)

58 Cal.4th 1354, 1386-1387 [trial court may not impose life

without parole without considering youth’s cognitive maturity

under Miller v. Alabama (2012) 567 U.S. 460].)

The judgment (order of wardship) is affirmed.